ELIAJAR BAGH Vs. DAYANIDHI GONDA

JUDGEMENT

(1.) THIS revision is by the unsuccessful second party in a proceeding under Section 145, Cr. P. C.

(2.) THE dispute is in respect of 3 -04 acres bearing plot No. 183 appertaining to khata No. 143 of village Umiri locally known as Ganda Bhumi alias Gobhar Bhumi, and the said land stands recorded as Ganda service in favour of Sonia Barik,. late father of Dayanidhi Gonda who was the first party in the trial court and the opposite party in this revision. The proceeding was initiated by PayanidhiGanda on the allegation that he was in peaceful possession of the above mentioned land and had grown the crop on the land, but the petitioner, second party in the trial court, was trying to disturb his possession by alleging that he got settlement of the land on 23 -10 -66. The petitioner alleged in his written statement that he was possessing the land as mortgagee from 1959 till 1965 and thereafter the Tahsildar Jeypore, assigned the said land in his favour on 21 -10 -65 in M. C. No. 102/62 and assessed annual rent at Rs. 8.65 P. He accordingly contended that he was in possession of the land in his own right on, payment of rent since 1965 and it was he who grew the crop on the said land. He alleged that after he reaped a portion of the crop grown by him on the said land, the first party with the aid of a large number of labourers and relatives forcibly cut and removed a portion of the paddy crop from the said land. He accordingly asserted possession over the said land.

(3.) THERE is enough force, weight and substance in the above contentions of Mr. Murty, The order actually and in effect sought to be revised in this case is the order passed in the proceeding by the learned Magistrate on 6 -3 -1967, and certainly not the order passed by the Sessions Judge in revision declining to refer the matter to this court. Now by the positive rule of limitation provided under Article 131 of the Limitation Act, 1963, an inflexible period of limitation (90 days) is prescribed for such an application for revision, and under Section 3 of the said Act such an application made after the above prescribed period shall have to be dismissed if the delay is not condoned under Section 5 of the said Act, There is no sanction in law for excluding the period for which the revision before the Sessions Judge remained pending in the said court, as the provisions of Section 14 of the Limitation Act, applicable only to civil proceedings are not applicable to such a case, (AIR 1939 Mad 512). The time taken by the petitioner (10 -1 -68 to 20 -1 -68) for obtaining the second copy of the Magistrate's order, which accompanied the petition for revision, cannot also be excluded under Section 12 of the Limitation Act, as the application for the same was filed beyond the period of limitation. The contention of Mr. Murty that the delay between 20 -1 -68 till 31 -1 -68 has not been satisfactorily explained, is not without any force. The averments in the petition, sworn to by the Advocate's clerk on 8 -5 -70, are merely to the effect that the records of the case were sent to the Advocate at Cuttack by post after 20 -1 -68 and were received by the Advocate at Cuttack on 31 -1 -68. There is nothing on record to support such a bald statement The petitioner not having filed this revision within the prescribed and permissible period under the Limitation Act, 1963, a very valuable right has accrued to the successful opposite party, which cannot and should not be very lightly brushed aside by condoning the inordinate delay of 304 days. It was the duty of the petitioner to know the period within which he was to file the revision in this court, and he having come up with such a time -barred revision petition should have made an honest, earnest and timely effort to satisfy this court that he had sufficient cause for not presenting this revision in time, and to that effect he should have furnished a detailed affidavit explaining distinctly the whole of the period of delay. No such effort was made in this case at the proper time though the question of limitation was taken by this court on two previous occasions. For the first time a petition to this effect, with the averments, as stated above, on affidavit by an Advocate's clerk of Cuttack, was filed only when the matter was posted on the Board for hearing after more than, two years of its filing. Moreover, all that is stated in that petition does not make out sufficient cause for condoning the whole period of delay. Moreover the concluding contention of Mr. Murty, that the petitioner would not suffer irreparably for non -condonation of the delay as he still has an efficacious remedy in the Civil Court, is also a factor militating against the exercise of the discretion under Section 5 of the Limitation Act in favour of the petitioner. On all the above discussions and considerations, the contentions of Mr. Murty that this revision petition is time -barred and the delay in filing the same cannot be condoned, are worthy of credit, and are accordingly accepted.